JUSTICE (RETD.) TANV1R BASHIR ANSARI, CHAIRMAN. - The appeal is directed against the office order dated 3.10.2000 whereby the penalty of "forfeiture of 10% pension for life yet to be sanctioned" in terms of Rule 4(1)(a)(iv) of Pakistan WAPDA Employees (E&D) Rules, 1978 was imposed upon the appellant. The departmental appeal filed on 8.2.2003 was rejected vide order dated 10.6.2003. The appeal before the Tribunal was filed on 11.7.2003.
2. Briefly, the facts are that the appellant, while employed as Chief Engineer (Water)/OSD, Central Contract Cell, WAPDA, Lahore was served with an explanation letter dated 30th June/1st July, 2004 calling up the explanation of the appellant under Section 5(iv)(b) of the Pakistan WAPDA Employees (E&D) Rules, 1978. The appellant submitted his reply dated 17.7.2000 to the said explanation letter wherein the allegations were denied, It may be relevant at this stage to point out that the allegations related to the proceedings of land acquisition under the Land Acquisition Act, 1894. It was alleged that the appellant was responsible for causing over payment which caused loss to the respondents.
3. The respondents did not consider the reply to the explanation letter as satisfactory. A show- cause notice dated 27.9.2000 was issued according to which penalty of "forfeiture of 50% pension for life yet to be sanctioned" was proposed. The appellant submitted his reply to the said show- cause notice. However, not considering the said reply to the satisfactory the impugned order was passed against the appellant.
4. We have heard Mr. Muhammad Nawaz Shaikh, Advocate for the appellant as well as Mr. Abbas Haider Jaffery, Advocate for the respondents and have perused the record.
5. The cause of grievance against the appellant arose upon the initiation of proceedings of acquisition of land under the Land Acquisition Act, 1894. The allegations against the appellant appeared to be that the failed to challenge the excessive land measurement made by the Survey and Settlement Department, Government of Sindh, Hyderabad which resulted in over payment of compensation. It was also alleged that the appellant failed to lodge objections during the proceedings of Land Acquisition Act, 1894 under Sections 8, 9 and 11 ibid, It was also contended that the appellant did not challenge the awards under Section 18 of the Land Acquisition Act and that all these lapses resulted in gross over payment by the respondents.
6. The appellant submitted a detailed reply to the said explanation letter, It was explained that a specific procedure of checks and balances is provided in the scheme of Land Acquisition Act. The appellant had rightly referred to para 44-1 of Standing Order 28 issued by the Government of Sindh which read as under:- "44-1: When the notification under Section 6 has been published in the Gazette, all further proceedings rest with the Collector or other Officers specially empowered by Government to perform the functions of a Collector under Section 3(c) of Act."
Reference to Section 8 of the Land Acquisition Act, 1894 is also relevant.
"Land marked out/measured and planned: The Collector shall there upon cause the land (unless it has been already marked out under Section 4) to be marked out. He shall also cause it to be measured and if no plan has been made thereof, a plan be made of the same."
7. Without going into any further legal implications of the various provision of the Land Acquisition Act in order to attribute any responsibility upon the appellant suffice it to say that the allegations against the appellant as contained in the explanation letter were based upon questions of fact and law. It was incumbent upon the respondents to have held a regular full-fledged inquiry after the service of explanation letter and after receiving the defence reply of the appellant. No such inquiry proceedings were undertaken by the respondents, It appears from the record that the respondents consider it sufficient to rely upon the result of the fact-finding inquiry which was constituted before the issuance of the show-cause notice, It need no again saying that the result of fact-finding inquiry is made only for coming to the conclusion if a prima facie case of misconduct is made out against the appellant. Even if it is assumed that the proceedings against the appellant, had commenced through the proceedings of the fact finding inquiry i.e. Prior to the promulgation of Removal from Service (Special Powers) Ordinance, 2000 and assuming that the proceedings commenced and concluded were rightfully done under the WAPDA Employees (E&D) Rules, 1978, we shall still have to see if the proceedings under the WAPDA Employee (E&D) Rules, 1978 were validly taken the inquiry procedure under the E&D Rules, 1978 provides as under:- "5. Inquiry Procedure: The following procedure shall be observed when a WAPDA employee is proceeded against under these rules:-
(i) In case where a WAPDA Employee is accused of subversion, corruption or mis-conduct, the competent authority may require him to proceed on leave or, suspend him, provided that any continuation of such leave or suspension shall require approval of the next higher authority after every three months.
(ii) While under suspension, as afore-said, the employee shall inform the appointing authority about his movements and shall not leave his station/place of posting without permission in writing of the appointing authority.
(iii) The competent authority shall decide whether in the light of facts of the case the. Case or the interest of justice an inquiry should be conducted through an Inquiry Officer, or Inquiry Committee.
If he so decides, the procedure indicated in Rule 6 shall apply.
(iv) If the competent authority decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall:
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) Give him an opportunity to submit a written explanation against the action proposed to be taken, within a period of not more than 14 days from the day the explanation letter has been communicated to him, and will also require the accused to state at the same time in his written explanation whether he desires to be heard in person: Provided that no such opportunity shall be given where the competent authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. *(v)(a) On receipt of the report of Enquiry Officer or Enquiry Committee, the competent authority shall consider the same if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed, and shall so inform the accused, supply him a copy of the report, and call upon him to show-cause within a reasonable time not less than seven days and not more than fourteen days from the day the notice has been served on him, why the penalty proposed be not imposed. The competent authority shall take into consideration the cause shown by the accused, hear him in person, and determine whether charge has been proved and then notwithstanding anything contrary in any other rule, office order or instructions shall pass such orders as he may deem proper.
(b) The above procedure of determining provisionally penalty to be imposed, asking the accused to show-cause, and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued Explanation Letter under the 5(iv) and the explanation submitted by him was found unsatisfactory. "
8. In the light of the allegations we are of the firm view that it was not a case where an inquiry could be lawfully dispensed with. Any discretion exercised for not holding a regular inquiry was not just and proper exercise of discretion. Having not held any inquiry it was not open for the respondents to have visited the appellant with the penalty of forfeiture of 10% pension for life yet to be sanctioned. This will take us to the WAPDA Pension Rules which govern the subject. Rule 7 deals with the general conditions governing entitlement to pension is reproduced as under:- "7. General conditions governing entitlement to pension:
(i) Future good conduct is an implied condition of every kind of pension. WAPDA may withhold or withdraw a pension or any part of it, if the pensioner be convicted of a crime involving moral turpitude or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to his effect is issued the procedure as laid down in the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, regarding imposition of the penalty of removal from service shall be followed. "
It is thus evident that the appellant could not have been found guilty of grave misconduct in the absence of a full- fledged inquiry which is a violation of WAPDA Employees (E&D) Rules, 1978.
9. There can be only two contingencies wherein the whole or any part of pension could be withheld or withdrawn. - Either the pensioner if convicted of a crime involving moral turpitude or to have been found guilty of grave misconduct, It is not denied that the appellant was tried In the Accountability Court No. IV, Sindh at Karachi upon the same allegations which were the subject- matter of the explanation letter and the department proceedings. The Accountability Court through its detailed judgment dated 18.5.2002 found that the prosecution has not been able to establish the charge against the accused (appellant hereinafter), beyond shadow of doubt nor has been able to prove that he has committed the offence of corruption and corrupt practices. The appellant was accordingly acquitted. An appeal was preferred by the State in the High Court of Sindh at Karachi. Vide judgment of the Hon'ble High Court, the appeal was dismissed and the judgment of the Accountability Court acquitting the appellant was maintained.
10. The second ground upon which pension can be withheld or withdrawn is the finding of guilty of grave misconduct in accordance with the rules. As observed hereinbefore the appellant could not be lawfully found guilty of the allegation without the holding of a regular full-fledged inquiry.
11. In view of the foregoing we find no justification for the passing of the impugned order whereby the penalty of "forfeiture of 10% of pension for life" was awarded to the appellant.
12. Resultantly, the appeal is allowed and the impugned order dated 3.10.2000 is set aside with all consequential benefits.
13. No order as to costs.
14. Parties be informed.